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Sibusiso Dube, Partner, Layla Shah, Associate and Jessica Rushmere, Candidate Legal Practitioner, Bowmans
The Constitutional Court of South Africa, in a judgment handed down on 3 October 2025, ushered in a new era for parental leave, one grounded in equality, dignity, and the evolving realities of modern families.
The Court confirmed that the country's parental leave laws, long anchored in traditional gender roles, are unconstitutional.
The decision marks a profound shift in how South African law recognises and supports all parents, regardless of gender or the path to parenthood. It is a judgment that not only affirms the rights of fathers, parents in same-sex relationships, adoptive parents, and commissioning parents, but also encourages society to embrace caregiving as a shared and inclusive responsibility.
Availability of parental leave and its duration between different categories of parents
The Constitutional Court confirmed the High Court's earlier ruling in Van Wyk and Others v Minister of Employment and Labour which declared several provisions of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Unemployment Insurance Act 63 of 2001 (UIA) unconstitutional.
The challenged provisions, namely sections 25, 25A, 25B and 25C of the BCEA and the corresponding sections of the UIA, govern maternity, parental, adoption, and commissioning parental leave and unemployment insurance compensation benefits (UIF Benefits) for parents.
These sections were found to unfairly discriminate among different categories of parents - mothers and fathers, biological and adoptive parents, and those who become parents through surrogacy - by creating a hierarchy of parental recognition, favouring birth mothers and marginalising other forms of parenthood.
In confirming the High Court's findings, the Constitutional Court held that the impugned provisions violated both section 9 and section 10 of the Constitution. It acknowledged that while birth mothers have unique health needs before and after childbirth, the BCEA and UIA went beyond protecting those needs and instead reinforced harmful stereotypes about gender roles and caregiving. The laws effectively marginalised fathers, parents in same sex relationships, adoptive parents, and commissioning parents, denying them an adequate opportunity to participate meaningfully in early parenting.
The Constitutional Court emphasised that the purpose of parental leave is not solely to accommodate the physiological recovery of birth mothers, but to support the nurturing of children.
It found that the current legal framework created a hierarchy of parenthood, treating parents, other than birth mothers, as secondary. This, the Court concluded, was not only discriminatory but also unjustifiable.
Further, it deprived parents of the opportunity to structure their parental responsibilities according to their personal circumstances and preferences which intruded unnecessarily upon their private space and impacted their human dignity.
Age cap on adoption leave
One of the most significant aspects of the judgment was the Court's treatment of the age cap for adopted children. Under the previous law, adoptive parents were only entitled to parental or adoption leave if the child was under the age of two. The Commission for Gender Equality challenged this provision, arguing that older adopted children also require time to bond and adjust to their new families.
While the High Court did not find the age capping unconstitutional, the Constitutional Court agreed with the Commission, finding that the age cap amounted to unfair discrimination based on age, a prohibited ground under section 9(3) of the Constitution. It noted that older children may, in fact, need more support and time with their new parents, and that the lack of leave for parents adopting older children could discourage such adoptions.
The Court accepted that, in principle, an age cap may be justified, but it was not convinced that two years was an appropriate cap and declared the current cap to be unconstitutional. It was not, however, clear to the Court what a reasonable cap should be and left this for the Legislature to determine.
The current position
The Constitutional Court suspended its declaration of invalidity for 36 months to give Parliament time to remedy the constitutional defects in the BCEA and UIA. However, in the interim, the Court has put the following key measures, among others, in place as a substitute for the impugned provisions:
Employees who are single parents or the only employed party in a parental relationship will be entitled to at least four consecutive months' parental leave.
A female employee who is expecting the birth of a child may commence parental leave at any time from four weeks before the expected birth date, or on a date certified as necessary by a medical practitioner or midwife and no female employee who has given birth to a child may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.
If both parties to a parental relationship are employed, the parties are entitled in the aggregate to four months and 10 days' parental leave, inclusive of the time allocated to the biological mother for preparation for and recovery from birth (if applicable).
Subject to the above, parents may agree on how to divide the leave, concurrently or consecutively, or partly concurrently and partly consecutively. If the parties cannot agree on the way the parental leave is to be taken, the leave must be split as equally as possible.
Insofar as the corresponding UIF Benefits are concerned, the Court found it inappropriate to provide an interim reading-in, reasoning that interim amendments to the UIA could have substantial financial implications and that it was preferable for the Legislature to determine the extent of the UIF Benefits conferred on employed parents in a non-discriminatory manner. Accordingly, the existing provisions of the UIA will continue to apply during the suspension period.
Mindful, however, that the required remedial legislation might not be brought into force during the suspension period, the Court ordered the Minister of Employment and Labour to provide a status update to the Court not later than six months before the expiry of the 36-month suspension period, so that supplementary relief can be provided and come into operation upon the expiry of the suspension period, if needed. This would also cater for the amendment of the two-year age cap in the context of adoption. The two-year cap will continue to apply during the suspension period.
Key takeaways and employment law considerations
Whilst this judgment is progressive and aligns South African law with international trends, it is not without its own faults. For example, there may be negative implications for birth mothers who may now have to share their parental leave benefits, which was not the case previously.
Careful consideration will also need to be given to how employers will implement and monitor the interim measures at a practical level. Some of the practical implications that employers will need to consider include:
How to verify the apportionment of leave that has been determined between employed parents to prevent abuse;
How to confirm that an employee has assumed parental rights and responsibilities over the child and is indeed a 'party to a parental relationship' and thus entitled to parental leave; and
How to appropriately extend any paid leave benefits that may currently be afforded only to female employees or for shorter periods of time, taking into account that some employees may not be eligible for full UIF Benefits whilst on parental leave during this interim suspension period.
Despite the uncertainty and concerns that some may have, this judgment has immediate far-reaching implications for employers and employees across South Africa. Employers will need to immediately update their leave policies, starting with, for example, abolishing references to maternity leave and provisions which limit parental leave to 10 days and then addressing the practical considerations mentioned above.
Employees who will become parents in the future and are in a parental relationship will need to discuss how they will apportion the four months and 10 days' leave entitlement between them
